THIS CUSTOMER AGREEMENT (“AGREEMENT”) SETS FORTH THE TERMS AND CONDITIONS ON WHICH CONTINUUM ANALYTICS, INC. (“CONTINUUM”) IS WILLING TO MAKE AVAILABLE “anaconda.org”, CONTINUUM’S CLOUD HOSTED PACKAGE MANAGEMENT SERVER (THE “SERVICE”), TO YOU, THE CUSTOMER (“CUSTOMER” OR “YOU”). BY PROCEEDING TO ACCESS AND USE THE SERVICE, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH IS A LEGALLY BINDING AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCEPTING IT AND USING THE SERVICE. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD REJECT IT AS INDICATED BELOW, IN WHICH CASE YOU WILL NOT BE PERMITTED TO ACCESS THE SERVICE.
- License Grant. Subject to the terms and conditions of this Agreement, and in consideration of the payment of any applicable fees, Continuum hereby grants to Customer a nonexclusive, nontransferable, revocable right and license for Customer to access and use the Service in accordance with the rules and restrictions of Customer’s subscription plan (the “License”). The License is restricted to use by Customer and does not include the right to use Continuum Technology (as defined below) on behalf of any third-party. All rights not expressly granted to Customer herein are reserved by Continuum and its licensors. There are no implied rights.
- Continuum Technology. Continuum shall operate and support the Service, including the Continuum Technology (as defined below), the server hardware, disk storage, firewall protection, server-operating systems, management programs, web-server programs, documentation, and all other information developed or provided by Continuum or its suppliers under this Agreement. For purposes of this Agreement, “Continuum Technology” means all of Continuum's proprietary technology (including without limitation, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to Customer by Continuum in providing the Service. Customer acknowledges and agrees that: (i) as between Continuum and Customer, all right, title, and interest in and to the Continuum Technology, the Service, and all derivatives thereof (including without limitation any and all patents, copyrights, trade-secret rights, trademarks, trade names, and other proprietary rights embodied therein or associated therewith) are and shall remain Continuum’s or its licensors’ and this Agreement in no way conveys any right or interest in the Continuum Technology or the Service other than the License, and (ii) the Continuum Technology and the Service are works protected by copyright, trade secret, and other proprietary rights and laws. The Continuum name, the Continuum logo, and the Service names associated with the Service are trademarks of Continuum or third parties, and no right or license is granted to use them. Customer shall not remove any Continuum trademark or logo from the Service.
- Downtime. Subject to the terms and conditions of this Agreement, Continuum shall use commercially reasonable efforts to provide access to the Service for 24 hours a day, 7 days a week throughout the term of this Agreement. However, Customer agrees that from time to time the Service may be inaccessible or inoperable for various reasons, including without limitation: (i) equipment malfunctions, (ii) periodic or emergency maintenance procedures or repairs, which Continuum may undertake from time to time, and/or (iii) causes beyond the control of Continuum or which are not reasonably foreseeable by Continuum, including without limitation interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, or other failures (collectively “Downtime”). Continuum shall not be in breach of this Agreement as a result of Downtime. Continuum shall use commercially reasonable efforts to provide 24 hour advance notice to Customer in the event of any scheduled Downtime. Continuum shall have no obligation during performance of such operations to mirror Customer Materials (as defined below) on any other server or to transfer Customer Materials to any other server. Continuum shall use commercially reasonable efforts to minimize any disruption, inaccessibility, and/or inoperability of the Service in connection with Downtime, whether scheduled or not.
- Restrictions. Unauthorized use, resale, or commercial exploitation of the Service in any way is expressly prohibited. Without Continuum’s express prior written consent in each instance, Customer shall not (and shall not allow any third-party to): reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Continuum Technology, or access the Service, in order to build any competitive Service or product, or copy any ideas, features, or functions of the Service. Except as expressly permitted in this Agreement, Customer shall not copy, license, sell, transfer, make available, lease, time-share, distribute, or assign the Service or the Continuum Technology to any third-party. Customer shall take all measures necessary to ensure compliance with all terms and conditions of this Agreement, and shall be responsible for its acts and omissions in connection with this Agreement. Customer shall keep all passwords safe and secure, and shall be responsible for all use of the Service using passwords issued to Customer. In addition to Continuum’s other remedies hereunder, Continuum reserves the right upon 10 days’ prior written notice to Customer to terminate Customer’s right to access the Service if Customer has violated the restrictions contained in this Agreement.
- Payment of Fees; Taxes. Several subscription plans exist for accessing and using the Service. Descriptions of the subscription plans, including base features, available “add-on” features, and applicable fees, are available as Anaconda.org Plans. Customer shall pay Continuum the applicable fees associated with Customer’s subscription plan and this Agreement. Customer is not entitled to use any features not associated with Customer’s subscription plan unless Customer has paid all applicable fees for such additional features. If Customer pays fees by credit card, Continuum will charge the credit card in accordance with Customer’s subscription plan. Customer remains liable for any fees which are rejected by the card issuer or charged back to Continuum. Customer agrees to pay a late charge of 1% per month (or part of a month), or the maximum lawful rate permitted by applicable law, whichever is less, for all amounts not paid when due. Customer will be solely responsible for, and will promptly pay, all taxes of any kind (including sales and use taxes) associated with this Agreement, the Service, or Customer’s access to the Service, except for taxes based on Continuum’s net income. Customer agrees to pay reasonable attorneys’ fees and court costs incurred by Continuum to collect any unpaid amounts owed by Customer.
- Customer Materials. All packages and content which Customer uploads to the Service or otherwise makes available to Continuum in connection with this Agreement (“Customer Materials”) will not be used by Continuum except as necessary to provide the Service or as explicitly allowed by the Customer. Customer hereby grants to Continuum a limited, non-exclusive, non-transferable, royalty-free right and license to use, display, transmit, and distribute the Customer Materials solely in connection with providing the Service to Customer. In addition, Continuum may analyze Customer Materials, and the materials of other customers, to create aggregated data and statistics that do not identify Customer or any individual, and Continuum may use and disclose such aggregated data and statistics in its discretion. Except as provided in this Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Materials. The content of Customer Materials shall be Customer’s sole responsibility. Continuum shall use commercially reasonable efforts to operate the Service in a manner that provides reasonable information security for Customer Materials, using reasonable data backup, security, and recovery protections. However, Continuum does not guarantee backup, security, or recovery of Customer Materials, and Customer remains responsible for maintaining its own backups of Customer Materials.
- Sharing of Customer Materials. The Service allows Customer to make its Customer Materials publicly available for use by other customers of the Service. If Customer makes such Customer Materials publicly available, Customer grants to Continuum and all Continuum customers a non-exclusive, worldwide, transferable, royalty-free license to use, copy, modify, sublicense, distribute, and otherwise exploit such shared Customer Materials, without limitation. If Customer uses any shared Customer Materials of other Continuum customers, Customer accepts that such Customer Materials are provided “as is” and without warranty of any kind. Except as otherwise set forth in this Agreement, Customer hereby disclaims all warranties, express and implied, with respect to any shared Customer Materials, including the warranties of merchantability and fitness for a particular purpose. Except in the case of fraud or intentional misconduct, Customer shall have no liability to other customers for such other customers’ use of Customer’s shared Customer Materials.
- Ideas Submitted to Continuum. Continuum is pleased to hear from you and welcomes your comments about the Service. In the event that you submit ideas or suggestions for the Service (“Service Comments”), the Service Comments will be deemed, and will remain, the sole property of Continuum. None of the Service Comments will be subject to any obligation of confidence on the part of Continuum, and Continuum will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Continuum will be entitled to unrestricted use of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, and without compensation to the provider, author, creator, or inventor of the Service Comments.
- Continuum’s Service Providers. Continuum provides the Service using a third-party cloud service provider (the “Cloud Provider”), accordingly, the Service and the availability, confidentiality, and security of Customer Materials is subject to the performance of the Cloud Provider. Continuum is not responsible for any act or omission of the Cloud Provider, including without limitation: (i) any breach of security caused by the Cloud Provider, or (ii) any Downtime caused by the Cloud Provider.
(a) Customer represents and warrants to Continuum (but not to any third-party) that: (i) Customer Materials and their use by Continuum and other Continuum customers as permitted by this Agreement will not infringe the copyrights, trademarks, service marks, patents, or other intellectual property or personal rights held by any third-party, (ii) Customer has all power and authority to enter into this Agreement and has duly and validly authorized this Agreement, and (iii) Customer shall comply with all laws, regulations, and rules applicable to Customer and its use of the Service.
(b) Except as expressly permitted in this Agreement, Customer shall not, and shall not permit others to: (i) remove any proprietary notices or labels on the Service (including any copyright or trademark notices), or (ii) use the Service other than as expressly permitted hereunder.
(c) Continuum warrants that it will provide the Service in a competent and workmanlike manner. Continuum does not warrant that it will be able to correct all reported defects or that use of the Service will be uninterrupted or error free. Continuum makes no warranty regarding features or services provided by any third-parties. Continuum retains the right to modify the Service and its other products and services at its discretion, provided that doing so does not have a material adverse impact on the Service hereunder. Customer's sole remedy for Continuum’s breach of the warranty in this paragraph shall be that Continuum shall remedy the applicable error, or Continuum is unable to do so in a timely manner, refund to Customer actual damages up to a limit of the fees paid for the Service the period during which the breach of warranty occurred.
(d) CUSTOMER ACKNOWLEDGES AND AGREES THAT EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 11, ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING, CUSTOM, OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY CONTINUUM.
- Limitation of Liability.
(a) TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CONTINUUM’S LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO CONTINUUM UNDER THIS AGREEMENT DURING THE 6 MONTHS PRECEDING THE CLAIM.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL CONTINUUM OR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, TECHNOLOGY PARTNERS, AFFILIATES, OR AGENTS BE LIABLE FOR SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR FOR THE LOSS OF ANTICIPATED PROFITS OR REVENUES, WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
(c) THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 12 ARE A FUNDAMENTAL BASIS OF THE BARGAIN SET FORTH IN THIS AGREEMENT, THAT CONTINUUM HAS SET ITS FEES IN RELIANCE ON THE ENFORCEABILITY OF THESE PROVISIONS, AND THAT THESE PROVISIONS SHALL APPLY NOTWITHSTANDING THAT ANY LIMITED REMEDY OR THIS AGREEMENT SHALL FAIL ITS ESSENTIAL PURPOSE.
(a) Customer shall defend, indemnify, and hold Continuum harmless from and against any suit, proceeding, assertions, damages, fees, costs, liability, penalties, fines, and expenses (including court costs and reasonable attorneys’ fees) incurred as a result of claims against Continuum and its employees and affiliates arising from or connected with: (i) any claim that the Customer Materials infringe, violate, or misappropriate any third-party intellectual property or proprietary right, and/or (ii) any breach of any representation or warranty set forth in this Agreement by Customer.
(b) The limitations in Section 12 do not apply to the indemnities set out in this Section 13.
- Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party shall, without the prior written consent of the other party, assign or transfer this Agreement, in whole or in part, provided that Continuum may assign this Agreement in its entirety, without consent, to any successor to its business, including in connection with any merger, consolidation, and/or sale of all or substantially all of its assets or any other transaction in which more than 50% of its voting securities are transferred, provided that such successor agrees in writing to be bound by the terms of this Agreement.
- Entire Agreement. This Agreement contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. Notwithstanding any course of dealings between the parties, no purchase order, invoice, or similar document shall be construed to modify any of the terms of this Agreement, unless the document is: (i) signed by both parties, and (ii) expressly refers to all provisions of this Agreement that the parties intend to modify by such document.
- Digital Millennium Copyright Act. Continuum complies with the provisions of the Digital Millennium Copyright Act (17 U.S.C. §512, as amended). If Customer has any complaints or objections to material posted on the Service, Customer may contact Continuum’s designated agent at the following address: Ashley Baal, 221 W 6 th Street, Suite 1550, Austin, TX 78701. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed, (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed, (iii) a description of the material that you claim is infringing and where it is located on the Service, (iv) your address, telephone number, and email address, (v) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law, and (vi) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. Counter Notices: If material that you have posted to the Service has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent address listed above that includes the following: (a) a physical or electronic signature of the subscriber, (b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled, (c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled, and (d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which Continuum may be found, and that you will accept service of process from the person who provided notification under 17 U.S.C. §512 (c)(1)(C) or an agent of such person.
- Termination and Suspension. Unless otherwise specified in Customer’s subscription plan, this Agreement takes effect immediately upon acceptance and shall continue until terminated by Customer’s written notice to Continuum. Customer may terminate this Agreement at any time and for any reason; provided, however, that all fees paid are non-refundable, and Customer remains liable for all payments that have accrued prior to the date of termination. Notwithstanding the foregoing, each party will have the right to terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure such breach within 30 days after written notice thereof. Continuum may terminate this Agreement immediately if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, or liquidation, if such petition or proceeding is not dismissed within 60 days of filing. In addition to the foregoing, Continuum also reserves the right, in its sole and absolute discretion, to suspend providing the Service, and Customer agrees that Continuum may shut off and suspend Customer’s access to the Service at any time, without having to terminate this Agreement, if Customer is more than 30 days late with respect to any payments due hereunder. Upon such suspension, Customer shall still be liable for all payments that have accrued prior to the date of suspension and that will accrue throughout the remainder of the term. Continuum will not be obligated to restore access to the Service until Customer has paid all fees owed to Continuum.
- After Termination. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Continuum shall no longer provide the Service to Customer, and (ii) Customer shall cease using the Service. Upon termination of this Agreement by Continuum due to Customer’s uncured breach, in addition to any other remedies Continuum may have for such breach, Customer shall pay Continuum for all fees that had accrued prior to the termination date and continue to pay Continuum for all fees that will accrue through the end of the then-current term. Except as expressly provided herein, termination of this Agreement by Continuum will be a nonexclusive remedy for uncured breach by Customer and will be without prejudice to any other right or remedy of Continuum. Termination of this Agreement by Customer and a refund of fees actually paid to Continuum, will be Customer’s sole remedy for uncured breach by Continuum. Sections 2, 4, 11(d), and 12-23, and all accrued payment obligations, will survive termination or expiration of this Agreement.
- Confidentiality. Customer agrees that during the course of this Agreement, Continuum’s confidential information may be disclosed to Customer, including without limitation, Continuum Technology, software, technical processes and formulas, source codes, service designs, sales, cost and other unpublished financial information, service and business plans, advertising revenues, projections, and marketing data ("Continuum Confidential Information"). Continuum Confidential Information shall not include information that Customer can demonstrate: (i) is in the public domain at the time of its disclosure or thereafter becomes part of the public domain through a source other than Customer, (ii) was known to Customer at the time of its disclosure, (iii) is independently developed by Customer, or (iv) is subsequently learned from a third-party not under a confidentiality obligation to Continuum. Customer shall not make any disclosure of Continuum Confidential Information. Customer’s confidentiality obligations shall survive 5 years beyond the expiration or termination of this Agreement. Continuum shall have the right to use Customer’s name and logo on any customer lists and in any marketing materials published on Continuum’s website or elsewhere. Continuum may announce its relationship with Customer in a press release, provided that Continuum obtains Customer’s prior approval of the wording of the release.
- Third-Party Websites. The Service may contain links to third-party websites. Such linked sites are not under Continuum’s control and Continuum is not responsible for the contents of any linked site. Continuum and other customers may provide these links as a convenience only and a link does not imply any endorsement of, sponsorship of, or affiliation with the linked site by Continuum.
- Notices. Any notice required or permitted hereunder shall be delivered as follows (with notice deemed given as indicated): (i) by personal delivery when delivered personally, (ii) by established overnight courier upon written verification of receipt, (iii) by facsimile transmission when receipt is confirmed orally, (iv) by certified or registered mail, return receipt requested, upon verification of receipt, or (v) by electronic delivery when receipt is confirmed orally.
- Force Majeure. If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including without limitation an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers (a “Force Majeure Event”), the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence, provided, that Customer will not be excused from the payment of any fees owed by Customer to Continuum that accrued prior to the Force Majeure Event, and provided further, that if a party suffering a Force Majeure Event is unable to cure that event within 30 days, the other party may terminate this Agreement.